The revision of the Posting of Workers Directive and the freedom to provide services in EU: towards a dead end?

Author:Sónia de Carvalho
Position:Department of Law, Portucalense Infante D. Henrique University; Researcher at IJP - Portucalense Institute for Legal Research, Porto, Portugal, scarvalho@upt.pt.
Pages:111-125
SUMMARY

The development of the internal market, based on the principle of freedom to provide services, as stated in article 56 TFEU, rendered common the posting of workers to another EU Member State. The risk of leading to social dumping in the host Member State, resulting from the less favourable working conditions of the sending Member State, justified Directive 96/71/EC. Collective bargaining, which... (see full summary)

 
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The revision of the Posting of Workers Directive and the freedom
to provide services in EU: towards a dead end?
Assistant professor Sónia De CARVALHO1
Abstract
The development of the internal mar ket, based on the principle of freedom to
provide services, a s stated in a rticle 56 TFEU, ren dered common the posting of workers to
another EU Member State. The risk of leading to social dumping in the host Member State,
resulting from the less favourable working conditions of the sendin g Member State,
justified Directive 96/71/EC. Collective barg aining, which has always taken on a
prominent place in the posting of workers fra mework provided for in Directive 96/71/EC, is
clearly r einforced by Directive (EU) 2018/957 tha t amended Directive 96/71/EC. The case-
law of the CJEU, however, ha s revealed that in so me cases the enforcement of the host
Member State working conditions, in view of the lack of harmonization of labour law in the
Member States in relation to minimum protection mandator y rules, can pa radoxically
constitute a restriction on the freedom to pr ovide services. The a nalysis of the amendments
introduced by the Directive (EU) 201 8/957 will demonstra te that, despite cr eating a
favourable legislative framework for fair competitive conditions between national
underta kings and the under takings that post workers, may compromise the delicate ba lance
between the protection of workers and the freedom to provide services.
Keywords: Directive (EU) 2018/957, posting of workers, freedom to provide services,
Europea n Union.
JEL Classification: K31, K33.
1. Introduction
Collective bargaining, which has always taken on a prominent place in the
posting of workers in the framework of the provision of services under Directive
96/71/EC, is reinforced by Directive 2018/957/EU. 2
The regulation of the posting of workers through Directive 96/71/EC and
the announced revision of the Directive are intended to combat social dumping
1 Sónia de Carvalho - Department of Law, Portucalense Infante D. Henrique University; Researcher at
IJP - Portucalense Institute for Legal Research, Porto, Portugal, scarvalho@upt.pt.
2 The Commission Work Programme 2016 states as purpose “ to address unfair pra ctices leading to
social dumping and bra in drain by ensuring that the same work in the same place is rewar ded by the
same pay”, available at https://ec.europa.eu/info/ sites/info/files/cwp_2016_en_0.pdf (consulted on
5.10.2018). This idea is stressed in the Political Guidelines for the next European Commission,
available at https://ec.europa.eu/commission/sites/beta-political/files/juncker-political-guidelines-
speech_en.pdf. The ground of this directive is th e Proposal for a Directive of the European
Parliament and of the Council amending Directive 96/71/EC of The European Parliament and of the
Council of 16 December 1996 concerning the posting of workers in the framework of the pro vision
of services COM/2016/0128 final - 2016/070 (COD) fulfilling the Political Guidelines and th e Work
Programme 2016, available at https://eur-lex.europa.eu/legalcontent/EN/TXT/HTML/?uri=
CELEX:52016PC0128&from=EN (consulted on 5.10.2018).

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